September 22, 2023

Epic Law

The Law Folks

Introduction to Judicial Review of Administrative Action in Malta

Introduction to Judicial Review of Administrative Action in Malta An integral and pertinent part of administrative law is the judicial review of administrative action. Judicial review is the process by which a decision of a government department, authority or agency, may be reviewed and eventually annulled by the courts if it goes counter to the law.

The action is available to anyone who is aggrieved by a government decision or action which concerns them. Article 469A of Chapter 12 of the Laws of Malta is the operative article which grants such power to the courts. However, even in absence of any such legislative article, judicial review may be said to be an inherent power of the courts on the basis of the doctrine of the separation of powers embraced by any state which purports to be democratic.

Brief Background The doctrine of Maltese Judicial Review of Administrative action is akin to the English doctrine on Judicial review. This is so because the basis of Maltese Administrative law is English Common Law. Even before any codified law on judicial review existed (1964-1981) our courts still asserted their power of review of administrative action by relying on English Common law principles of judicial review.

In fact, the Maltese judgement Lowell v. Caruana (1972) established that English Common law is the basis of Maltese Administrative law in cases of lacunae. Article 469A states: “Saving as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases: (a) where the administrative act is in violation of the Constitution; (b) when the administrative act is ultra vires on any of the following grounds: ii.when such act emanates from a public authority that is not authorised to perform it; or ii. when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or iii. when the administrative act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations; or iv. when the administrative act is otherwise contrary to law.’

An administrative act or a government decision or action includes inter alia, the issue of licences, warrant, permits as well as orders. Prescriptive Period within which to File an Action The action against a government or other public authority is to be lodged in court within six months from the day upon which the government decision or action is taken, or licence or permit is officially issued, or from the day that the aggrieved learned of such a decision.

Maltese Court Decisions on the basis of Article 469A In an action for judicial review the court is empowered to impugn and declare null an action or decision taken by a government authority. However, the court cannot substitute its own decision with that of the government authority; where the decision of a government department has been annulled on the basis of unconstitutionality, ultra vires or illegality, the court can only order the government department to reconsider its action and take another decision.

The court can in no way order the government department to take a particular decision. Thus, the refusal of the Police Commissioner to grant a permit for fire-works display was quashed by the Court on the basis that he had based his refusal on a new policy not yet envisaged by the law. (1)A decision of the Board of Appeal of the Planning Authority was quashed on the basis that it had imposed vague and unclear conditions on the applicant.. (2)A decision of the University Rector to refuse entrance to a student was also successfully annulled. (3)The course to which the applicant had applied for was subject to a numerus clausus.

The court observed that the criteria upon which admissions to the courser were to be made had not been promulgated as law, as was required by the Education Act. Consequently, the contested decision was annulled as it had not been founded on any legal basis. Damages under Article 469A It is possible to claim damages under an action for judicial review. However, this is very limited.

Maltese doctrine excludes any claim for damages on the basis of psychological pain or distress. Thus, the only damages which will be granted are those which the applicant suffered materially (this may include loss of future earnings) as a consequence of the decision taken by the government or public authority. The successful challenge of a government decision or action does not automatically entitle the applicant to damages. Unless the government act is proven to have been executed in bad faith or if it is proven to have been unreasonable, then claim for material damages will be successful.

Thus, although the decision of the University Senate to expel a university student in her fourth year of studies was successfully quashed, her claim for material and psychological damages was denied by the court because the applicant failed to prove that the University Senate had acted unreasonably or in bad faith(4). Dr Natasha Buontempo Edu. Cert., B.A., Dip. N.P., LL.D Author’s Note: In my next article I will be dealing with the grounds of Judicial Review of administrative action separately. Contents of this article may be used for academic reference only and may not be reproduced without the author’s consent.

(1)Socjeta’ Filarmonika La Stella v. Kummissarju tal-Pulizija, Appeal, 19/7/1997.

(2)Fenech v. Awtorita’ ta’ l-Ippjanar, Appeal, 15/12/1997.

(3)Attard v. Ellul Micallef, Appeal, 4/3/1998.

(4) Buttigieg v. Rettur ta’ l-Universita’ ta’ Malta et. First Hall Civil Court, 22/12/2003.